The federal government has introduced an Online Harms Act to combat child pornography and hate speech.
Yet while the objectives of the legislation are laudable, the means proposed are deeply troubling.
The stated intent is to hold accountable internet sites that traffic in this kind of material. However, the wording of the bill is broad enough that it could easily be aimed at anyone who posts opinions online.
Then a huge new bureaucracy is called upon to monitor and prosecute inappropriate content.
A Digital Safety Commission is to be set up, with a mandate to administer and enforce the act.
Within this commission, “certain persons” can be accredited to conduct research, and the act gives them authority to search the electronic files of social media operators.
A Digital Safety Ombudsperson is to be appointed to “advocate for the public interest in relation to online safety.”
Then a Digital Safety Office of Canada will be established to support the new commission and the new ombudsperson in fulfilment of their duties.
The bill also creates a new hate-crime offence, through which anyone who advocates for genocide can be imprisoned for life, or up to five years if they publish material motivated by hatred.
And “hatred” is defined as “an emotion that involves detestation or vilification that is stronger than disdain or dislike.”
We might almost stop at this point.
Terms like “detestation” and “vilification” unavoidably involve subjective judgment.
How they are to be held separate from mere “disdain” is anyone’s guess, though under this act, perhaps a Digital Safety Commissioner will decide.
The threat to freedom of speech is readily apparent. Could a pro-Palestine blogger who employs the slogan “From the river to the sea” be charged with a hate crime as it’s now defined?
But it gets worse. Section 810 of the act states: “A person may, with the Attorney General’s consent, lay an information before a provincial court judge if the person fears on reasonable grounds that another person will commit … (a hate crime.)”
That is to say, it’s not necessary for anyone to be convicted of a hate crime, that such a crime has actually been committed. It is sufficient that some “person” fears they may do so at a future point.
This verges into science fiction. In the movie Minority Report, Pre-crime Chief Tom Cruise apprehends criminals based on the insights of “pre-cogs” who can foresee the future. People are thus arrested and imprisoned before they commit a crime.
And that in effect is what the legislation calls for. Pre-crimes are to become a punishable offence.
Whether the legislation will be enacted is unclear. At present it is still in the early stages of parliamentary review.
And of a near certainty, several provisions in the statute, in particular the section dealing with pre-crimes, would be ruled unconstitutional if the act ever came into force.
Perhaps the drafters hoped the sheer length of the bill would defend it against being read. At more than 30,000 words, it’s more than twice as long as Canada’s founding document, the Constitution Act of 1867.
The impression created is that extreme measures are warranted by the serious nature of the harms in question.
Hence the massive bureaucracy proposed. Hence also the creation of “pre-crimes,” an offence unknown in any law book.
What lies ahead remains to be seen. Let us hope calmer heads will prevail and the bill will be redrafted. Moderation in pursuit of justice is not a bad thing.
For as it stands, and despite its good intentions, the Online Harms Act will do more harm than good.
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